LEAD TRADERS LTD v. LUCKY LAND ENTERPRISE LTD AND ANOTHER

CACV 217/2011 AND CACV 219/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 217 AND 219 OF 2011

(ON APPEAL FROM LDCS NO. 11000 OF 2011)

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  On 26 July 2012, this Court allowed these appeals, reversing the ruling of the Presiding Officer in the Lands Tribunal and striking out the application of the Majority Owners seeking an order for the compulsory sale of the building, the subject of this litigation, under the Land (Compulsory Sale for Redevelopment) Ordinance, Cap. 545.  Our Reasons for Judgment were handed down on 2 August 2012.

2.  The Majority Owners now apply by two Notices of Motion both dated 22 August 2012 for leave to appeal to the Court of Final Appeal from our judgment.

3.  The application is made under s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, on the basis that the intended appeal involves the following questions of great general or public importance:

“1.1. Whether on a proper construction of the Land (Compulsory Sale for Redevelopment (Specification of Lower Percentage) Notice, Cap 545A (“the Notice”) issued under the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“Ordinance”), a “unit” for the purpose of section 4(1)(a) of the Notice must be separated from any adjacent or surrounding units by physical partition, in particular having regard to:

(1) the ordinary meaning of the word “unit”; and

(2) the word “premises” in the definition of “unit” in section 2 of the Notice.

1.2. In any event, whether any purported subdivision of units which involved (or which, if physical works were carried out pursuant to plans attached to any instruments registered in the Land Registry, would have involved) the carrying out of physical works amounting to a common law wrong, namely breach of any DMC or other instrument among the owners of the lot would be a “unit” for the purpose of section 4(1)(a) of the Notice.”

4.  We have some doubt as to whether either question can be said to raise a question of great general or public importance.

5.  There is no material before the Court to indicate whether the outcome of any other case would be affected by a decision of the Court of Final Appeal in these appeals and the relative importance of the questions must be open to question given that the particular factual circumstances in these appeals arose by reference to a sub-division of the relevant unit before 1 April 2010.  That was the date when the Notice lowering the relevant threshold for a compulsory sale order from 90% to 80% came into effect.  If the particular factual circumstances with which this case is concerned were now to re-occur, the result would be different since the purported sub-division would not be effective to create two separate units.

6.  But even assuming a question of great general or public importance is raised, we do not think that it is reasonably arguable.

7.  Question 1 is not, we think, reasonably arguable because the word “unit” is expressly defined in s. 2 of the Notice solely by reference to the undivided shares in a lot and not by reference to its ordinary meaning.  We do not think the question is rendered arguable by reference to the ordinary meaning of the word “premises”, which is a word capable of different meanings depending on its context: see Stroud’s Judicial Dictionary (7^th Ed.) Vol. 3, p. 2103.  Nor do we think it helpful to have regard to the use of the word “premises” in other ordinances.

8.  The Majority Owners rely on the case of Fully Profit (Asia) Ltd v Secretary for Justice [2012] 1 HKLRD 1003.  However, the issue there involved the meaning of the word “house” arising in the context of government leases and conditions of exchange where it was not specifically defined.  In our view, the fact that in that case leave to appeal to the Court of Final Appeal was granted by this court (differently constituted) does not provide a cogent reason for the grant of leave in respect of these appeals.

9.  As to question 2, although framed on an “in any event” basis in the Notices of Motion, we doubt that this question arises independently of question 1 so that our conclusion on question 1 would render question 2 academic. Even if it were not academic, for the reasons given in our judgment at paragraphs 42 and 43, we do not think any breach of the DMC or OP would affect the validity of the allocation of undivided shares in the lot by registration of the relevant instruments.

10.  For these reasons, we dismiss the Majority Owners’ Notices of Motion.